M.J. JamalluddIn Sahib and Co., Through One of Its Partners Muthukrishnama Naidu

Cases Referred

and Kshetranath Banerjee v. Kalidasi Dasi

Excerpt: - - justice mookerjee did not intend to lay down any general or universal test, appears clearly from observations made in an earlier case by a bench, of which the learned judge was a member kailas chandra v. 3. then the learned judges go on to express the same idea even more clearly: the expression 'suit for account is used in the well-known technical sense of the term (konduru runga reddi v......for accounts by the plaintiff against the defendant unless the defendant is under a liability to render accounts to the plaintiff.' kshetranath banerjee v. kalidasi dasi (1916) 27 c.l.j. 96.2. although the statement seems general, it is difficult to believe that it was intended to embody an infallible test. the actual point decided in the case was, that a suit for the recovery of a specific sum of money, does not assume the character of a suit for accounts, merely because for the deciding of the question in controversy, accounts may have to be examined. indeed, that mr. justice mookerjee did not intend to lay down any general or universal test, appears clearly from observations made in an earlier case by a bench, of which the learned judge was a member kailas chandra v. kiranenda ghosh.....

Judgment:

Venkatasubba Rao, J.

1. The question I have to decide is, whether the suit which has given rise to this petition, is exempted from the cognisance of a Provincial Small Cause Court. That turns upon the meaning of the words 'suit for an account' occurring in Article 31 of the Second Schedule to that Act. The course of, dealings was as follows: - The plaintiff's firm would advance monies to the defendant and the latter would consign goods for sale on commission. The defendant would be credited with the sale proceeds and debited with the commission and various kinds of charges. The plaintiff's firm thus held a dual character of creditor and agent, the defendant's position being that of debtor and principal. The question that has to be determined is, whether the plaintiff's suit, brought professedly for a specific amount is cognizable by a Provincial Small Cause Court. It is difficult, as has been observed in one of the cases cited before me, to reconcile the decisions on the point; nor is it possible to deduce therefrom a rule of general application. The present suit having been brought by an agent, Mr. Narasaraju for the plaintiff contends that actions by agents stand on a different footing from actions by principals. His contention is that where an agent sues, there can be no question of the defendant being required to render an account, whereas if the action is by the principal, the suit becomes one ' for an account'. There is an observation of Mookerjee, J., which lends apparent support to this contention. The learned Judge observes:

There cannot in essence be a suit for accounts by the plaintiff against the defendant unless the defendant is under a liability to render accounts to the plaintiff.' Kshetranath Banerjee v. Kalidasi Dasi (1916) 27 C.L.J. 96.

2. Although the statement seems general, it is difficult to believe that it was intended to embody an infallible test. The actual point decided in the case was, that a suit for the recovery of a specific sum of money, does not assume the character of a suit for accounts, merely because for the deciding of the question in controversy, accounts may have to be examined. Indeed, that Mr. Justice Mookerjee did not intend to lay down any general or universal test, appears clearly from observations made in an earlier case by a Bench, of which the learned Judge was a member Kailas Chandra v. Kiranenda Ghosh (1911) 10 I.C. 883. 'If in order to grant relief to the plaintiff,' the Bench observes:

it is necessary to take accounts, the suit is one for account within the meaning of Article 31, although the plaintiff may have chosen to put a definite money value upon the claim.

3. Then the learned Judges go on to express the same idea even more clearly:

Whether the suit is one for account'... must depend upon the relation in which the parties stand to each other, and the nature of the investigation required to afford relief to the plaintiff.

4. These observations are quoted with approval by Benson and Sundara Aiyar, JJ., in Varadarajulu Chettiar v. Narayanaswami Chetty : (1913)24MLJ693 . True, it is not every suit by principal against agent and vice versa that is excluded from the cognisance of a Small Cause Court, for, if such general exclusion had been intended, nothing would have been easier for the Legislature than to have said so in direct terms. For instance, if the accounts had been settled and the account-taking in the technical sense would not become necessary, the Small Cause Court would be competent to deal with the matter. But whoever figures as the plaintiff (principal or agent, it makes no difference), where the essence of the action is that no relief can be granted without accounts being taken, the suit must be deemed one 'for an account'. What is known as a suit for an account is a special form of suit - a special process being required to take an account. The expression ' suit for account is used in the well-known technical sense of the term (Konduru Runga Reddi v. Kumbahala Subbamma I.L.R.(1904) Mad. 394 and Kshetranath Banerjee v. Kalidasi Dasi (1916) 27 C.L.J. 96) already referred to. The bare fact that some sort of arithmetical process is involved in the decision, does not render the suit a suit for account. While this is undoubtedly true, care must be taken to distinguish this class of suits from those, where account taking in the strict sense, is of the very essence of the claim. Judged by this test, the present suit is, as Mr. Swaminathan contends, excluded from the jurisdiction of the Small Cause Court. Though the suit is by the agent, is it not obligatory upon him to render an account in the action itself, if called on to do so? If the bona fides of the sales were questioned, would not the agent be under a duty to render an account? Again, would it not be open to the defendant to challenge in this very suit the expenses debited against him? These are matters to be gone into in suits for account and it makes no difference whether the agent brings the suit or the principal does so. The distinction contended for is therefore unsound in principle and I am not? prepared to accept it.

5. In the result I make an order directing the plaint to be returned for presentation to the proper Court. Each party will bear his costs throughout.

6. One word more. The parties reside in two different places; the plaintiff at Madura, the defendant at Alathur. The defendant has filed, I understand, a counter-suit in the Alathur Munsiff's Court. One or the other of the parties, it is stated, intends to move the High Court for an order that both suits should be tried by the same Court. If such an application is made it may be posted before me.